Just when fraud investigators think that they have got it right along comes another challenge for us to face. This time not from the Ministry of Work (the department formally known as Social Security) but from the Lord Chancellor’s Office, in the form of the Legal Aid Scheme.

It is a fundamental right of all persons accused of a criminal offence to be entitled to representation. This is not a new concept but one which dates back to 1297AD’s Magna Carta ( and even before that to the earliest days of democratic rule under the Athenians of ancient Greece). This concept has embodied in it the concept that law is for everyone and those who can not afford representation should still have access to it. Justice has to be done.

In reality law is not so much to do with justice and jurisprudence than it is to do with spectacle and showmanship. Art has never been available to the masses, only to those who can afford it. These days thanks to our American cousins and the introduction of actors to the bar (who are now known as barristers) law seems to be a soap opera featuring the Archers, Hamiltons, and Fayeds.

But what of criminal law and justice for the people? Well it lurches on. It is recognised that running a court case is expensive for both the plaintiff and the defendant, I asked a friend of mine (a retired senior clerk of the court), if they considered those appearing before the bench as customers. "Oh no," he replied "only as plaintiffs and defendants." This is how it should be. This cost excludes the ordinary person from being represented in court, unless they either have funds to buy representation or the people’s government supplies "free" representation.

One might argue that the fraudster (along with many other types of criminal) do have the money to fund their defence. This maybe true although one might argue that the money being spent on the defence is often the accusers own money obtained illegally. Certainly the more successful the fraudster has been, can result in them affording a better defence team (so long as they have not spent their ill-gotten gains beforehand), and therefore the better the chance that they will have to escape justice on a matter of technicality.

But what of the benefit fraudster faced by a council or the benefits agency that are under pressure from the Ministry of Works to prosecute or to issue a sanction. (I am not in anyway criticising the DWP for this approach, it is right and proper).  Well the Lord Chancellor’s Office has ensured that those accused of a criminal offence have access to free legal representation.

However, the scheme, like any scheme that aids those less fortunate than others has been abused, and as a result from April 2001 a new version of the Legal Aid scheme came into place. No doubt there was some opportunity for us to have made representation during the consultative process but if so it made little difference to the end result.

The new scheme fails to recognise that much criminal investigation and prosecution is not done by either the Police or HM Customs & Excise but by other regulatory bodies, local authorities being a prime example. The Home Office has faced similar problems and have only just started to understand the extent to which non police and customs regulate and police criminal activity with the introduction of the Regulation of Investigatory Powers Act 2001.

Currently if you are to be interrogated at a police station or on HM Custom’s property you are entitled to free legal advice and a duty solicitor will be available for you to consult. However, if you are to be interviewed under the Police and Criminal Evidence Act 1984 on local authority premises, you must firstly consult with a solicitor (who will probably charge you for that consultation). The solicitor will then subject you to means testing to find out whether you are entitled to free legal advice and assistance. If your income is more than £70 per week then you will not be entitled and you will have to pay for a solicitor’s service.

What this has meant is that many people accused of benefit fraud or trading standards offences are being advised by solicitors to attend the interview "admit nothing and see what the whole thing is about." This is not very good for the interrogators who can find a line of argument being presented at court when the defendant has had the opportunity to talk with the duty solicitor and no opportunity to argue against this defence. This is often done in mitigation "my client is poor and didn’t understand the rules and spent the money on their poor starving children", (which is the whole point of why they were there because they did understand the rules),admitted this on tape and spent the money on fast cars etc.

The other problem is that some solicitors have told fraud investigators that the accused must be interviewed at a police station so that they can claim free legal advice and failure to do so would be a breech of their client’s human rights and an abuse under PACE. This is generally untrue. PACE rules only apply to those who are being detained. Local authority fraud investigations do not have the power to detain. The Human Rights abuse (article 6 – right to fair trial) is not one for the investigator, this is a matter for the Lord Chancellor’s Department because they have responsibly for the legal aid scheme. There is no reason whatsoever for a local authority fraud investigator to have to interrogate a suspect at a police station. That having been said, there is also no reason why a suspect could not be seen at a police station.

Surely the whole point in this matter is to consider a test of reasonableness, interview where it is best for all concerned, and do so on your terms not because a solicitor has demanded it. If the solicitor asks nicely and it can be arranged then "why not?" A solicitor will make an argument of bad faith if they can. This is nothing to do with the client, remember we are talking about the law not justice.

In conclusion the Lord Chancellor’s Office agrees that the scheme is not right and plans to review matters as soon as possible. In the meantime some poor plaintiff will loose their case on a legal aid/human rights technicality and there will be little that they can do about it; or some "rich" fraudster will get Matrix Chambers to launch a Judicial Review of the legal aid scheme and its relationship to ECHR.

In the meantime how about following the words on the cover of the late, great Douglas Adam’s book "The Hitchhiker’s Guide to the Galaxy": Don’t Panic!